Yes, Congress Should Vote on Iran — Whether or Not the President Asks

I am substantially in agreement with Charlie about congressional war power. And, like him, I’m in disagreement with some scholars we both admire. My position isn’t guided by whether a presidential use of force, unauthorized by Congress, would work “substantive, non-defensive change to America’s foreign policy.” I believe (as I’ve long said) that the Constitution empowers the president to use whatever force appears reasonably necessary, even absent Congress’s approval, to overcome an attack or threatened attack on vital American interests; outside of that situation, the president needs congressional authorization.

Concededly, there’s plenty of room in that standard for willful presidents to make mischief. That’s unavoidable. We can’t make many antecedent rules about the use of force because threats don’t follow a script and often are unanticipated. That is why the War Powers Resolution, enacted over President Nixon’s veto while he was weakening in 1973 (and codified at Title 50, U.S. Code, §§1541 et seq.) looks backward: It assumes a president has already responded militarily to some attack or threat and lays out (in some constitutionally controversial ways) the conditions under which American combat operations may continue or must cease.

As Hamilton famously put it in Federalist No. 23:

The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances[.]

The president has to be given a great deal of leeway because the United States has to respond to threats. But I don’t see how the president is vested with unilateral power to take the nation to war in the absence of a concrete threat. (I’m resisting the word “imminent” because that opens another can of worms.)

Constitutionally, the default position is that Congress must authorize warfare. This is sufficiently obvious that, to avoid its clarity, we’re expected to indulge such nonsense as that an armed military attack on a nation in which our forces kill dozens of people (mostly security forces), decapitate a foreign regime, and take the de facto leader prisoner, whisking him back to our country, is not really war — it’s just a law enforcement operation. No one believes that we’d see it that way were we on the receiving end.

I think there should be congressional hearings on the Iran threat, with an eye toward a congressional authorization of military force. In so saying, I acknowledge that, under long-standing (though to my mind constitutionally dubious) Justice Department theories justifying unilateral executive war-making, President Trump does not need congressional authorization. But he should want it. Because obtaining congressional authorization is not only the constitutionally appropriate course; it is also politically prudent.

Military expeditions can go wrong and, in any event, rarely go according to plan. It’s vital to have congressional buy-in, meaning public buy-in, especially if there is any chance that the expedition will be long-term, or if the nexus to American national security is vague. Moreover, congressional hearings and debate over the use of force compel the president, the armed forces, the intelligence agencies, and Congress to consider thoroughly and explain with care what the objectives are and why they are worth the risks.

Let me add three final points for now.

First, the excerpted passage above is often invoked but rarely quoted to conclusion. After Hamilton said, “This [war] power ought to be coextensive with all the possible combinations of such [threatening] circumstances,” he added: “And ought to be under the direction of the same councils which are appointed to preside over the common defence” (emphasis added). That’s Congress. See the prelude to the main source of congressional power, Article I, Section 8: “The Congress shall have Power To . . . provide for the common Defence . . . of the United States.”

Second, the president believes (in earnest, I stipulate) that it’s crazy to be expected to seek ex ante congressional authorization because he would lose the element of surprise, a huge advantage in warfare. To my mind, this is overblown: How much surprise can there be when the war drums are beating quite publicly in order to squeeze Iran into making concessions, when it takes weeks to array what appear to be historically powerful fighting forces on Iran’s doorstep, and when the president, on social media, explicitly threatens military strikes?

In the end, though, it really doesn’t matter what Trump or I or anyone else thinks about the significance of the element of surprise. The Framers, with George Washington — the hero of the Revolutionary War and certain to be the first president — presiding over their deliberations, decided that the peril to liberty would be prohibitive if too much war power was concentrated in one set of hands (the hands of the commander in chief, as Article II makes the president). Hence it endowed the main war power in Congress. That was not an assessment that the element of surprise was unimportant; it was a recognition that the trade-offs of elevating the element of surprise were too high. And that calculation was correct because the presidency has all the unilateral war-making power we need it to have in its authority to respond as needed to real provocations.

Third, the power expressly vested in Congress by Clause 11 of Article I, Section 8, is “to declare War.” It does not say, “To declare War if the President so requests.” There is no requirement that Congress wait to be asked for authorization by the president before debating whether to grant authorization. Moreover, if Congress took the first step, the president would have every incentive to cooperate in the inquiry, since a negative vote would undermine the legitimacy of president’s desired military mission.

Of course, on this as on seemingly everything else, the modern Congress prefers to abdicate: Let the president make the big calls, then celebrate or carp as the partisan case may be. That doesn’t make it right.